Before the Court is a Motion for Summary Judgment filed by
Defendant, American Community Mutual Insurance Company (# 5-1)
("ACMIC"), seeking a determination that Plaintiff, Thomas C.
Berry ("Mr. Berry"), made a material misrepresentation on an
insurance application which nullifies his policy under the
Illinois Insurance Code, 215 ILCS 5/154 (1992). For the reasons
set forth below, the motion is granted.

BACKGROUND

On March 17, 1992, Thomas and Diana Berry signed an application
for group health insurance with American Community Mutual
Insurance Company. The ACMIC insurance application requires the
applicant to disclose examinations, advice, and treatment
received during the previous ten years. In response to this
request for disclosure, Mark Miller, Mr. Berry's agent,
acknowledged that Mr. Berry suffered from stomach problems for
which he had taken several medications and sought the advice of
three attending physicians: Dr. Goldberg, Dr. Hourng (sic), and
Dr. Willey.

However, Mr. Berry, through his agent, failed to disclose that
in April and June of 1988 he had sought the advice, examination,
and treatment of Dr. Sawicki,*fn1 an internist, and Dr. Edward
W. Pegg III, a specialist in neurology, for symptoms of pain and
numbness in the left leg, left flank, and left side of his chest
which he had been experiencing for five to six weeks. The results
of these examinations are recorded in examination notes and by
the uncontroverted deposition testimony of Dr. Pegg which
follows.

In a letter to Dr. Sawicki dated April 14, 1988, Dr. Pegg
reported that his examination revealed that the numbness and pain
experienced by Mr. Berry on the left side of his body were
consistent with hyperalgesia*fn2 and a lesion, noting that other
symptoms associated with the onset of multiple sclerosis ("MS")
such as blurred vision, were not present. The letter concluded by
recommending further evaluation. On April 16, 1988, Dr. Pegg
advised Mr. Berry that his resolving symptoms were consistent
with the possibility
of MS or some type of collagen vascular process,*fn3 recording
these statements in his notes.*fn4 On June 15, 1988, Mr. Berry's
symptoms had completely resolved.*fn5 Although Dr. Pegg noted
that he was suspicious of a demyelinating disorder,*fn6 he made
no diagnosis at that time. Further observation was planned, but
Mr. Berry did not keep the next two scheduled appointments and
the examinations were discontinued.

On July 21, 1992, Mr. Berry again sought advice and treatment
from Dr. Pegg. On that occasion, Mr. Berry presented blurred
vision in the right eye. Dr. Pegg referred Mr. Berry to an
ophthalmologist, Dr. Kasbeer, but concluded that Mr. Berry "was
showing signs that would support the diagnosis of MS which
warranted further examination."

DISCUSSION

The Illinois Insurance Code provides that a misrepresentation
made by an insured in the negotiation for a policy of insurance
shall defeat or avoid the policy where the misrepresentation was
made with actual intent to deceive or materially affects either
the acceptance of the risk or the hazard assumed by the insurance
company. 215 ILCS 5/154 (1993). A misrepresentation is defined as
"a statement of something as a fact which is untrue and affects
the risk taken by the insurer."*fn7 Northern Life Insurance Co.
v. Ippolito Real Estate Partnership, 234 Ill. App.3d 792,
601 N.E.2d 773, 176 Ill.Dec. 75 (1st Dist. 1992).

Materiality, like probable cause, is ordinarily a question of
fact reserved for the jury because its determination requires an
assessment of whether "reasonably careful and intelligent persons
would have regarded the facts stated as substantially increasing
the chances of the events insured against, so as to cause a
rejection of the application." Northern Life Insurance Co., 601
N.E.2d at 779, 176 Ill.Dec. at 81. Summary Judgment is
appropriate, however, "where the misrepresentation is of such a
nature that there can be no dispute as to its materiality."
Commercial Life Insurance Co. v. Lone Star Insurance Co. et
al., 727 F. Supp. 467 (N.D.Ill. 1989).

Rule 56(c) of the Federal Rules of Civil Procedure provides
that summary judgment "shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
By its very terms, this standard provides that the mere existence
of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary
judgment; the requirement is that there is no genuine issue of
material fact.

Contrary to Plaintiff's assertion, no genuine issue of fact
exists with respect to the question of materiality in this case,
because Plaintiff has failed to meet ACMIC's affidavit on this
issue.*fn8 The case law indicates that "[t]he materiality of a
misrepresentation may be established by the underwriter's
testimony." Garde by Garde v. Country Life Insurance Co.,
147 Ill. App.3d 1023, 498 N.E.2d 302, 101 Ill.Dec. 120 (4th Dist.
1986); Commercial Life Insurance Co., 727 F. Supp. at 469
(N.D.Ill. 1989). The underwriter's opinion is not necessarily
conclusive on the issue though and may be controverted by the
applicant, thus creating a genuine issue of material fact
precluding summary judgment.*fn9

However, the facts asserted in an uncontroverted affidavit will
be taken as true on summary judgment. ACMIC has submitted an
affidavit by its underwriter stating that ACMIC would have denied
insurance coverage to Mr. Berry had it known of the examination
results by Dr. Pegg. This assertion has not been directly
controverted by Mr. Berry; instead, he side-steps the issue,
submitting affidavits by employees of Dr. Goldberg and Dr. Horng,
which assert that ACMIC never requested Mr. Berry's records. Mr.
Berry thus contends that even if the names of Dr. Sawicki and Dr.
Pegg had been listed on the application, ACMIC would not have
checked these records, thereby assuming the risk of providing
coverage to him. Mr. Berry's argument suggests that the omissions
were not material because ACMIC's assumed risk would have been
made without the omitted information.

A similar argument was rejected in Commercial Life Insurance
Co. v. Lone Star Insurance Co., 727 F. Supp. 467 (N.D.Ill. 1989),
and summary judgment granted in favor of the insurance company,
where a district court found that the insurance company's failure
to check records and undertake other underwriting precautions did
not preclude it from relying on the truthfulness of the
applicant's answers and assuming a risk on the basis of these
answers. Judge Aspen wrote in Lone Star that "[t]he implicit
foundation of this argument is an assumption that Lone Star had
an obligation to take these measures . . . [and] that assumption
is incompatible with Illinois law." Id. at 470.
Summary Judgment was also granted in Small v. Prudential Life
Insurance Company, 246 Ill. App.3d 893, 617 N.E.2d 80, 186
Ill.Dec. 841 (1st Dist. 1993), where the defendant's underwriter
testified that if the omitted medical history had been disclosed,
the insurance company would not have issued the policy and the
plaintiff offered no evidence to counter this testimony. Id.,
617 N.E.2d at 83, 186 Ill.Dec. at 844.

Although there may be a question of fact regarding whether Mr.
Berry actually had MS in June of 1988, this question is not
material for purposes of the legal issue in this case, namely,
whether Mr. Berry made a material misrepresentation by omitting
from his insurance application the names of Dr. Sawicki and Dr.
Pegg and the purpose for their examinations. Although this
determination is usually made by a jury applying an objective
"reasonable person" test to the facts, the Court believes that
the uncontroverted affidavit of ACMIC's underwriter disposes of
the relevant factual question in this case, leaving the Court to
conclude that if Plaintiff cannot dispute the materiality of this
misrepresentation with appropriate expert testimony on summary
judgment, a reasonable jury could not help but find the issue of
materiality in favor of Defendant. Accordingly, summary judgment
will be ordered in favor of ACMIC.

CONCLUSION

IT IS THEREFORE ORDERED that the Motion for Summary Judgment
filed by Defendant, American Community Mutual Insurance Company
is GRANTED (# 5-1). The Clerk of the Court is directed to enter
judgment in favor of Defendant and against Plaintiff. Each party
is to bear their own costs. CASE TERMINATED.

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